S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5729
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 24, 2021
                                ___________
 
 Introduced  by M. of A. CUSICK, FITZPATRICK, GOODELL, PALMESANO, WALCZYK
   -- Multi-Sponsored by -- M. of A.  McDONOUGH,  RA  --  read  once  and
   referred to the Committee on Codes
 
 AN  ACT  to  amend  the  penal law, in relation to the unborn victims of
   violence act

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Legislative  intent.   The legislature hereby finds and
 declares that a  significant  loophole  exists  in  state  law,  denying
 protection to pregnant women and certain children.  Currently, an offen-
 der  may  not  be  held  criminally responsible for the harm caused to a
 child unless that child has first been born alive.  Therefore, an assai-
 lant who shoots a woman who is seven months pregnant, and kills both the
 woman and her child, may only be charged with the homicide of the mother
 since the infant is not considered a legal victim of the crime.
   New York state policy lags behind most states in this  area  of  crime
 victims'  protection.    Thirty-one  states  now  provide protection and
 justice for pregnant women and their unborn children who are victims  of
 violence.
   The  legislature  further  finds  and declares that current statistics
 demonstrate that domestic abuse and  violence  against  women  increases
 during pregnancy.  It is estimated that one in five women will be abused
 during  pregnancy.  A study in the Journal of the American Medical Asso-
 ciation found that in the state of Maryland, a pregnant  woman  is  more
 likely  to  be  a  victim  of a homicide than to die of any other cause.
 Thus, rather than pregnancy being a peaceful time of preparation and the
 growth of a healthy child, for many women it can be a time of  violence,
 grief and loss.
   Compounding  this tragedy is the loophole in current law, which denies
 effective protection and remedy to women and their  children.    When  a
 woman makes a conscious choice to keep her baby and has the choice viol-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01140-01-1

 A. 5729                             2
 
 ently taken away from her by a violent perpetrator, justice demands that
 someone  be  punished  for that crime.   Indeed, mothers will bury their
 baby's body and mark the grave for their child for  the  rest  of  their
 lives, but New York law tells them their loved one never existed.
   The  legislature  does not intend this act to apply to any abortion to
 which a woman has consented, to any act of the mother herself or to  any
 form of medical treatment.  The legislature finds that the current legal
 right  to abortion does not protect and does not confer on an assailant,
 a third-party unilateral right to destroy an unborn child.
   The legislature recognizes that a federal "unborn victims of violence"
 law was enacted in 2004, yet believes the law to be limited in  applying
 only to unborn children injured or killed during the course of specified
 federal crimes of violence.
   It  is  the  intent of the legislature that the affirmative right of a
 pregnant woman to carry her child to term be protected, and that  perpe-
 trators  of  crimes  against pregnant women and their unborn children be
 held accountable for their crimes.
   § 2. Short title.  This act shall be known as and may be cited as  the
 "unborn victims of violence act".
   §  3.  The  penal law is amended by adding two new sections 120.75 and
 120.80 to read as follows:
 § 120.75 ASSAULT AND RELATED OFFENSES; DEFINITION.
   THE FOLLOWING DEFINITION IS APPLICABLE  TO  SECTIONS  120.00,  120.03,
 120.04, 120.05, 120.06, 120.07, 120.10 AND 120.12 OF THIS ARTICLE:
   "PERSON,"  WHEN  REFERRING  TO  THE  VICTIM OF ANY ASSAULT, AGGRAVATED
 ASSAULT OR VEHICULAR ASSAULT, MEANS A HUMAN BEING WHO HAS BEEN BORN  AND
 IS ALIVE, OR AN UNBORN CHILD AT ANY STAGE OF GESTATION.
 § 120.80 ASSAULT AND RELATED OFFENSES; DEFINED.
   NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO PERMIT THE PROSECUTION:
   1.  OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
 FOR WHICH THE CONSENT OF THE PREGNANT WOMAN HAS BEEN OBTAINED; OR
   2. OF ANY PERSON FOR ANY MEDICAL TREATMENT OF THE  PREGNANT  WOMAN  OR
 HER UNBORN CHILD.
   §  4.  Section 125.00 of the penal law, as amended by chapter 1 of the
 laws of 2019, is amended to read as follows:
 § 125.00 Homicide defined.
   1. Homicide means conduct which causes the death of  a  person  OR  AN
 UNBORN  CHILD AT ANY STAGE OF GESTATION under circumstances constituting
 murder IN THE FIRST DEGREE, MURDER IN THE SECOND DEGREE, manslaughter in
 the  first  degree,  manslaughter  in  the  second   degree,   VEHICULAR
 MANSLAUGHTER  IN  THE FIRST DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND
 DEGREE, or criminally negligent homicide.
   2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED  TO  PERMIT  THE  PROSE-
 CUTION:
   (A) OF ANY PERSON FOR CONDUCT RELATING TO A JUSTIFIABLE ABORTIONAL ACT
 FOR  WHICH  THE  CONSENT OF THE PREGNANT WOMAN OR A PERSON AUTHORIZED BY
 LAW TO ACT ON HER BEHALF, HAS BEEN OBTAINED OR FOR WHICH SUCH CONSENT IS
 IMPLIED BY LAW; OR
   (B) OF ANY PERSON FOR ANY MEDICAL TREATMENT OF A PREGNANT WOMAN OR HER
 UNBORN CHILD.
   § 5. Section 125.05 of the penal law,  the  section  heading,  opening
 paragraph  and  closing paragraph as amended by chapter 1 of the laws of
 2019, is amended to read as follows:
 § 125.05 Homicide and related offenses; definition.
   The following definition is applicable to this article:

 A. 5729                             3
 
   "Person," when referring to the victim of a homicide,  means  a  human
 being  who has been born and is alive OR AN UNBORN CHILD AT ANY STAGE OF
 GESTATION.
   § 6. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.